Citation Nr: 0529017
Decision Date: 10/28/05 Archive Date: 11/09/05
DOCKET NO. 04-22 254 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Service connection for the cause of the veteran's death.
2. Service connection for Alzheimer's dementia, to include
as secondary to pulmonary tuberculosis, for accrued benefit
purposes.
REPRESENTATION
Appellant represented by: Michael R. Viterna, Attorney
at Law
ATTORNEY FOR THE BOARD
K. L. Wallin, Counsel
INTRODUCTION
The veteran served on active duty from February 1951 to
February 1953. The veteran died in January 2002. The
appellant is the veteran's widow.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a February 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied service connection for the
cause of the veteran's death. This matter also comes before
the Board on appeal from an April 2003 rating decision, which
denied service connection for residuals of Alzheimer's
dementia secondary to pulmonary tuberculosis for accrued
benefits purposes.
FINDINGS OF FACT
1. The appellant has been apprised of what evidence would
substantiate the claims for benefits and the allocation of
responsibility for obtaining such evidence; and all relevant
medical and lay evidence obtainable and necessary to render a
decision in these matters has been received.
2. The veteran died in January 2002; his death certificate
indicated that the immediate cause of death was an acute
myocardial infarction. There were no underlying causes or
other significant conditions contributing to the veteran's
death.
3. At the time of the veteran's death he was service
connected for pulmonary tuberculosis.
4. A disability of service origin did not produce or hasten
the veteran's death.
5. Alzheimer's dementia is not proximately due to or the
result of the service-connected pulmonary tuberculosis.
CONCLUSIONS OF LAW
1. The Veterans Claims Assistance Act of 2000 has been
satisfied. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107
(West 2002).
2. The criteria for service connection for the cause of the
veteran's death are not met. 38 U.S.C.A. §§ 1110, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2004).
3. The criteria for the establishment of service connection
for Alzheimer's dementia for accrued benefits purposes are
not met. 38 U.S.C.A. §§ 1110, 1131, 5121 (West 2002);
38 C.F.R. §§ 3.303, 3.310, 3.1000 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties To Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), enacted on
November 9, 2000, emphasized VA's obligation to notify
claimants what information or evidence is needed in order to
substantiate a claim, and it affirmed VA's duty to assist
claimants by making reasonable efforts to get the evidence
needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West 2002); see Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002). In August 2001, VA issued
regulations to implement the VCAA. 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2004).
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). In this case, the RO did provide the veteran with
notice of the VCAA in July 2002, prior to the initial
decision on the claims in February 2003 and April 2003.
Therefore, the timing requirement of the notice as set forth
in Pelegrini has been met and to decide the appeal would not
be prejudicial to the claimant.
Moreover, the requirements with respect to the content of the
VCAA notice were met in this case. VCAA notice consistent
with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim.
This "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
The RO specifically informed the appellant in the July 2002
letter as to what kinds of evidence was needed to
substantiate the claims for service connection for the cause
of the veteran's death and Alzheimer's dementia secondary to
pulmonary tuberculosis for accrued benefits purposes. The
appellant was informed that evidence towards substantiating
her claims would be evidence of (1) the cause of death, (2)
an injury, disease, or other event in service, and (3) a
relationship between the cause of death and the injury,
disease, or event in service. The February 2003 and April
2003 rating decisions and the April 2004 statement of the
case (SOC), in conjunction with the July 2002 letter,
sufficiently notified the appellant of the reasons for the
denial of her application and, in so doing, informed her of
the evidence that was needed to substantiate those claims.
While the appellant was not specifically informed of the
"fourth element," i.e., to provide any evidence in her
possession that pertained to the claims, she was notified to
"[s]end the information describing additional evidence or
the evidence itself to the address at the top of this
letter..." Thus, the Board finds that she was fully notified
of the need to give to VA any evidence pertaining to her
claims.
All the VCAA requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). As noted above,
because each of the four content requirements of a VCAA
notice has been fully satisfied in this case, any error in
not providing a single notice to the appellant covering all
content requirements is harmless error.
Service medical and personnel records, a VA medical opinion,
and private medical records have been obtained in support of
the claims on appeal. In sum, the Board finds that VA has
done everything reasonably possible to assist the appellant.
In the circumstances of this case, additional efforts to
assist the appellant in accordance with the VCAA would serve
no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
inform and assist the appellant at every stage of this case.
Given the development undertaken by the RO and the fact that
the appellant has pointed to no other evidence, which has not
been obtained, the Board finds that the record is ready for
appellate review.
Analysis
A. Cause of Death
The appellant claims that she is entitled to service
connection for the cause of the veteran's death. The law
provides dependency and indemnity compensation (DIC) for the
spouse of a veteran who dies from a service-connected
disability.
38 U.S.C.A. § 1310. Service connection may be established
for the cause of a veteran's death when a service-connected
disability was either the principal or a contributory cause
of death. 38 C.F.R. § 3.312(a).
A service-connected disability is the principal cause of
death when that disability, singly or jointly with some other
condition, was the immediate or underlying cause of death or
was etiologically related thereto. 38 C.F.R. § 3.312(b). A
contributory cause of death must have contributed
substantially or materially to death, combined to cause
death, or aided or lent assistance to the production of
death. 38 C.F.R.
§ 3.312(c)(1). For a service-connected disability to
constitute a contributory cause, it is not sufficient to show
that it casually shared in producing death, but, rather, a
causal connection must be shown. 38 U.S.C.A. § 1310; 38
C.F.R. § 3.312.
Issues involved in a survivor's claim for DIC based on the
cause of the veteran's death under section 1310 of the
statute are decided without regard to any prior disposition
of those issues during the veteran's lifetime. See 38 C.F.R.
§ 20.1106. Under section 3.310(a) of VA regulations, service
connection may be established on a secondary basis for a
disability which is proximately due to or the result of
service-connected disease or injury; where a service-
connected disability aggravates a nonservice-connected
condition, service connection may be granted for the degree
of disability over and above the degree of disability
existing prior to the aggravation. See Allen v. Brown, 7
Vet. App. 439, 448 (1995) (en banc).
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the appellant prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied. 38
U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
The appellant contends that the veteran's death was related
to his service-connected disability. However, she has not
submitted evidence in support of her claim. The death
certificate shows that the veteran died from an acute
myocardial infarction in January 2002. There were no other
significant conditions or underlying causes determined to
have contributed to the veteran's death. No autopsy was
performed. At the time of his death, the veteran was service-
connected for pulmonary tuberculosis.
Service medical records were negative for a heart condition.
The veteran's blood pressure upon pre-induction examination
in October 1950 was 130/74. Upon separation examination in
February 1953, the veteran's blood pressure was recorded as
112/70.
Post-service, medical records from West Winds Nursing Home
dated in 2001 indicated the veteran had a history of
arteriosclerotic cardiovascular disease. Treatment notes
from Huron Valley Sinai Hospital dated in 2001 and 2002 note
a past medical history of thyroid disorder, coronary artery
disease (CAD), stroke, and arteriosclerosis. The appellant
contends that CAD and stroke were not part of the veteran's
medical history. However, she has presented no evidence to
the contrary.
The Board notes that the majority of the medical evidence
contained in the claims folder was submitted in support of
the appellant's accrued benefits claims. These records are
regarding a relationship, if any, between Alzheimer's
dementia and pulmonary tuberculosis.
There is no indication that cardiovascular disease was
incurred during the veteran's active duty service. Nor is
there any evidence of record that cardiovascular disease, to
include acute myocardial infarction, was proximately due to
or the result of the service-connected pulmonary
tuberculosis.
Considering the evidence of record summarized in pertinent
part above, and in light of the applicable laws and
regulations, the appellant's claim for service connection for
the cause of the veteran's death must be denied. Apart from
the appellant's opinion, there is no evidence of record, that
the service-connected pulmonary tuberculosis was either the
principal or a contributory cause of the veteran's death. 38
C.F.R. § 3.312(a). As the appellant is a layperson she is
not competent to make a medical diagnosis or to relate a
medical disorder to a specific cause. Espiritu v. Derwinski,
2 Vet. App. 492, 494-95 (1992); Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993).
Accordingly, the preponderance of the evidence is against the
claim for service connection for the cause of the veteran's
death. Consequently, the benefit-of-the-doubt rule does not
apply, and the claim must be denied.
B. Accrued Benefits
The appellant contends that she is entitled to accrued
benefits. Specifically, she asserts that service connection
should be awarded, and VA compensation paid, for Alzheimer's
dementia as secondary to the service-connected pulmonary
tuberculosis and that therefore there is an unpaid amount
that was due to the veteran prior to his death.
In July 2001, the appellant filed an application on the
veteran's behalf for a rating in excess of 30 percent
disabling for pulmonary tuberculosis. (The Board notes that
the veteran gave the appellant his power of attorney in
December 1997.) In a November 2001 rating decision, the 30
percent rating for pulmonary tuberculosis, moderately
advanced with right upper lobectomy, was continued. The
appellant filed a notice of disagreement (NOD) in December
2001. However, in a statement from the veteran and his wife,
it was clarified in January 2002, that he was actually
seeking service connection for Alzheimer's dementia on a
secondary basis.
The veteran died in January 2002. The appellant filed VA
Form 21-534, Application for DIC, Death Pension, and Accrued
Benefits by a Surviving Spouse or Child, in April 2002.
After a thorough review of all the available evidence of
record, to include: the veteran's death certificate;
statements from the appellant and her Elderwise
Advisor/Advocate; private medical records from West Winds
Nursing Home, Huron Valley Sinai Hospital, the Department of
Health, and Dr. WEM; and medical journal articles, the Board
concludes that entitlement to accrued benefits is not
warranted. In this regard, accrued benefits are defined as
"periodic monetary benefits to which a payee was entitled at
his death under existing ratings or decisions, or those based
on evidence in the file at the date of death and due and
unpaid for a period not to exceed two years." See 38
U.S.C.A. § 5121;
38 C.F.R. 3.1000(a). Accrued benefits may be paid upon the
death of a veteran to his or her spouse. 38 C.F.R.
§ 3.1000(a)(1)(i). However, an application for accrued
benefits must be filed within 1 year after the date of death.
In the instant case, while the appellant filed her
application within one year from the veteran's death, service
connection for Alzheimer's dementia as secondary to the
service connected pulmonary tuberculosis is not warranted.
Thus, there were no unpaid benefits to which the veteran was
entitled to at the time of his death.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b).
Service connection may also be granted for any injury or
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease or injury was incurred in service. 38 C.F.R. §
3.303(d). In order to establish direct service connection
for a disorder, there must be (1) medical evidence of the
current disability; (2) medical, or in certain circumstances,
lay evidence of the in-service incurrence of a disease or
injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004)
(citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).
In this matter, a disability, which is proximately due to, or
the result of a service connected disease or injury shall be
service connected. See 38 C.F.R. § 3.310. When aggravation
of a veteran's non-service connected disability is
proximately due to or the result of a service-connected
disease or injury, it too shall be service connected. See
Allen v. Brown, 7 Vet. App. 439, 446 (1995). Establishing
service connection on a secondary basis requires evidence
sufficient to show: (1) that a current disability exits, and
(2) that the current disability was either (a) caused by or
(b) aggravated by a service-connected disability. See Allen
v. Brown, 7 Vet. App. 439 (1995).
In a January 1956 rating decision, service connection was
awarded for active pulmonary tuberculosis, moderately
advanced. The veteran's service medical records were devoid
of relevant treatment, symptoms or complaints of pulmonary
tuberculosis. Chest x-rays dated in January 1953 were
negative. Private medical records from Pontiac City
Sanatorium reveal the veteran was diagnosed with pulmonary
tuberculosis, moderately advanced, in 1956. Service
connection was awarded for pulmonary tuberculosis on a
presumptive basis, as it manifested within three-years from
the veteran's discharge from active duty service in 1953.
In support of her claim, the appellant has submitted medical
records from the Michigan Department of Health, which reveal
the veteran underwent a right upper resection in February
1956 for pulmonary tuberculosis. Records indicate the
veteran was treated with PAS, 4 grams, three times daily, and
Nydrazid, 100 milligrams, three times daily. Treatment
records from the Oakland County Tuberculosis Sanatorium note
the veteran was diagnosed with chronic pulmonary inflammatory
disease, right lung, moderately advanced, in November 1955.
An entry dated in February 1957, shows the veteran was
treated with the same course of treatment.
The appellant also submitted an October 2001 statement from
Dr. WEM. Dr. WEM indicated that the veteran was diagnosed
with Alzheimer's disease in 1996. He indicated that "per
family accounts," the veteran was treated with Isoniazid for
a period of 18 months for his pulmonary tuberculosis. He
further indicated that he was informed that during and after
antituberculous therapy, nutritional support in form of
specific B-vitamin administration was not performed. Dr. WEM
noted that Alzheimer's disease was considered a blood vessel
disease. He stated that during a treatment of pulmonary
tuberculosis it had been long advised to administer vitamin
B-6.
Dr. WEM further stated that early studies have shown how
deficiencies of B-6 lead to elevation of homocysteine levels,
which was a risk factor for developing vascular disease. He
indicated that based on a review of medical studies and
articles, higher homocysteine levels were seen in Alzheimer's
type dementia. Dr. WEM further revealed that Isoniazid
treatment caused B-6 deficiency and directly interfered with
folic acid intestinal absorption, which in turn decreased
cognitive function accompanied by an increase in blood
homocysteine levels. He concluded that as it was
demonstrated that Alzheimer's dementia was correlated with
levels of homocysteine, an implication was easily drawn that
a lack of nutritional support in an individual treatment for
tuberculosis, contributed to the risk factor for the
development of Alzheimer's dementia.
Dr. WEM further concluded that "it [was] only a matter of
study to confirm the increased risk of development of
[Alzheimer's dementia] with nutritionally unsupported
[tuberculosis] therapy." Dr. WEM opined, there was
sufficient material in the medical body of literature to
support a contribution of the veteran's earlier tuberculosis
and therapy to the development of his disabling Alzheimer's
dementia.
Finally, the appellant submitted a January 2002 letter from
her Elderwise Advisor/Advocate, which contends that the
veteran was treated with Isoniazid, referenced as Nydrazid in
the 1955 medical records, and that he received no Vitamin B
therapy.
A March 2003 VA medical opinion indicated that the veteran's
claims folder was reviewed, to include Dr. WEM's October 2001
letter. The opinion indicated that the most important risk
factors for Alzheimer's disease are old age and positive
family history. The doctor also indicated that early in
Alzheimer's disease, other etiologies of dementia should be
excluded (like thyroid disease, vitamin deficiencies, brain
tumor, drug and medication intoxication, chronic infarct and
severe depression). It was the VA medical examiner's opinion
that the veteran's Alzheimer's disease was not likely
secondary to the treatment received for his service-connected
tuberculosis.
The Board has thoroughly reviewed the medical evidence of
record and concludes that the preponderance of the evidence
is against a finding that the veteran's Alzheimer's dementia
was secondary to his service connected pulmonary
tuberculosis. In this regard, the Board finds that with
respect to the evidence presented, greater weight is to be
accorded to the findings of the March 2003 VA medical
opinion. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993)
(it is the responsibility of the Board to assess the
credibility and weight to be given the evidence) (citing Wood
v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also
Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the
probative value of medical evidence is based on the
physician's knowledge and skill in analyzing the data, and
the medical conclusion the physician reaches, as is true of
any evidence, the credibility and weight to the attached
medical opinions are within the province of the Board).
The Board, in looking at the findings of the March 2003 VA
medical opinion, notes that the doctor conducted a complete
review of the veteran's claims folder, to include Dr. WEM's
opinion. The Board is of the opinion, that the VA examiner
who performed the March 2003 opinion reached the conclusion
that the veteran's Alzheimer's dementia was not due to
service-connected pulmonary tuberculosis, based on a complete
and thorough review of the medical evidence of record.
In contrast, the Board finds that Dr. WEM statements
contained in the October 2001 letter are equivocal at best.
The Board finds that the conclusions do not appear to be
supported by a thorough review of the veteran's claims
folder. The Board bases its conclusion on the doctor's own
omission that "per family accounts," the veteran was
treated with Isoniazid for a period of 18 months for his
pulmonary tuberculosis. He further indicated that he was
informed that during and after antituberculous therapy,
nutritional support in form of specific B-vitamin
administration was not performed.
Moreover, the opinion was based on various medical articles,
and thus, the Board finds that the opinion contained therein
is too speculative. In this regard, the Board has reviewed
the articles attached to Dr. WEM's opinion and finds that the
principles discussed do not specifically relate the effects
of vitamin B-6 deficiency on homocysteine concentrations and
the development of Alzheimer's dementia to this veteran, as
compared to the elderly, children, and lab rats who were the
subjects of the studies discussed. Sacks v. West, 11 Vet.
App. 314, 317 (1998)(citing Beausoleil v. Brown, 8 Vet. App.
459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523
(1996); Wallin v. West, 11 Vet. App. 509 (1998). Further,
there is no indication in the record that the veteran was
vitamin B-6 deficient. Moreover, the articles did not
address treatment for pulmonary tuberculosis in the 1950's
and whether such treatment led to the development of
Alzheimer's dementia.
The article entitled "Effect of Vitamin B-6 Deficiency on
Fasting Plasma Homocysteine Concentrations" indicated that
only one in eleven elderly subjects who consumed a vitamin B-
6 deficient diet were found to have elevated homocysteine
concentrations. In 10 out of 11 of human subjects, fasting
plasma homocysteine concentrations did not increase out of
the normal range during vitamin B-6 depletion. The article
further indicated that no prior studies assessing the effect
of vitamin B-6 deficiency on plasma homocysteine
concentrations in humans have been published. The article
concluded that their results suggested that vitamin B-6
deficiency often was not accompanied by an elevated fasting
plasma homocysteine concentration; and consequently, was not
a good indicator of vitamin B-6 status.
The article entitled "Plasma Homocysteine in Vascular
Disease and in Nonvascular Dementia of Depressed Elderly
People," discussed the implications of 27 elderly acute
inpatients diagnosed with depression according to the
diagnostic criteria for the Diagnostic & Statistical Manual,
3rd Edition (DSM III), and homocysteine levels. There is no
indication that the veteran carried a clinical diagnosis of
depression.
Various additional articles suggested that it was possible
that homocysteine concentration was associated with
subclinical vascular or other changes that may affect
cognitive function. The article entitled "Homocysteine and
Alzheimer's Disease" indicated that there was an emerging
hypothesis that vascular disease was a contributing factor in
the pathogenesis of Alzheimer's dementia. The article
further indicated that the deficiency of B vitamins was
likely the cause of elevated homocysteine levels in the
majority of cases. The article entitled "Folate, Vitamin
B12, and Serum Total Homocysteine Levels in Confirmed
Alzheimer Disease," concluded that despite plausible
mechanisms, further work was required to establish whether
there was a causal relationship between elevated tHcy levels
and low folate and vitamin B12 levels in patients with
Alzheimer's dementia.
While medical treatise evidence can provide important support
when combined with an opinion of a medical professional, in
the instant case, as discussed above, a nexus between the
veteran's Alzheimer's dementia and pulmonary tuberculosis has
not been shown. Mattern v. West, 12 Vet. App. 222, 228
(1999). The Board calls attention to Dr. WEM's statements
that "it [was] only a matter of study to confirm the
increased risk of development of [Alzheimer's dementia] with
nutritionally unsupported [tuberculosis] therapy." The
Board finds that Dr. WEM's opinion as to an etiology of the
veteran's Alzheimer's dementia is too speculative, and thus,
not probative of the matter on appeal. See Miller v. West,
11 Vet. App. 345, 348 (1998) (medical opinions must be
supported by clinical findings in the record; bare
conclusions, even those made by medical professionals, which
are not accompanied by a factual predicate in the record, are
not probative medical opinions). Therefore, based on the
aforementioned, the Board has afforded more weight to the
opinion of the March 2003 VA medical opinion, and finds that
the clinical evidence of record does not support a finding of
secondary service connection.
In conclusion, the Board finds that the appellant has not
established that she is entitled to secondary service
connection for Alzheimer's dementia for accrued benefits
purposes, and her appeal must be denied. See 38 C.F.R. §
3.310(a). Moreover, while the appellant does not contend
that the claimed disorder is directly related to the
veteran's active duty service, the Board finds no evidence
that the veteran had Alzheimer's dementia in service, and
there is no medical evidence relating the claimed disorder to
an incident of the veteran's active service.
In reaching the foregoing decision, the Board has been
cognizant of the "benefit of the doubt rule." However, as
the evidence is not in relative equipoise, the rule is
inapplicable in this case. See 38 C.F.R. § 3.102; Gilbert,
supra.
ORDER
Service connection for the cause of the veteran's death is
denied
Service connection for Alzheimer's dementia, to include as
secondary to pulmonary tuberculosis, for accrued benefit
purposes, is denied
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs